Bill Summary – FastDemocracy

BILL AS INTRODUCED                                                            S.7
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                                        S.7
 Introduced by Senators Hashim, Vyhovsky and White
 Referred to Committee on
 Date:
 Subject: Crimes and criminal procedure; public defenders
 Statement of purpose of bill as introduced: This bill proposes to require that
 public defender services be available to any person charged with a crime, not
 just those persons charged with serious crimes.
    An act relating to qualifications for a public defender
 Sec. 1. 13 V.S.A. § 5201 is amended to read:
 § 5201. DEFINITIONS
    In As used in this chapter, the term:
         (1) “Detain” means to have in custody or otherwise deprive of freedom
 of action.
         (2) “Expenses,” when used with reference to representation under this
 chapter, includes the expenses of investigation, other preparation, and trial.
         (3) “Needy person” means a person who at the time his or her the
 person’s need is determined is financially unable, without undue hardship, to
 provide for the full payment of an attorney and all other necessary expenses of
 representation or who is otherwise unable to employ an attorney.
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     BILL AS INTRODUCED                                                           S.7
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       (4) “Serious crime” includes:
          (A) a felony;
          (B) a misdemeanor the maximum penalty for which is a fine of more
 than $1,000.00 or any period of imprisonment unless the judge, at the
 arraignment but before the entry of a plea, determines and states on the record
 that he or she will not sentence the defendant to a fine of more than $1,000.00
 or a period of imprisonment if the defendant is convicted of the misdemeanor;
 and
          (C) an act that, but for the age of the person involved, would be a
 serious crime.
       (5) “Serious crime” does not include the following misdemeanor
 offenses unless the judge at arraignment but before the entry of a plea
 determines and states on the record that a sentence of imprisonment or a fine
 over $1,000.00 may be imposed on conviction:
          (A) [Repealed.]
          (B) Big game violations (10 V.S.A. § 4518)
          (C) Simple assault by mutual consent (13 V.S.A. § 1023(b))
          (D) Bad checks (13 V.S.A. § 2022)
          (E) Petit larceny (13 V.S.A. § 2502)
          (F) Theft of services under $500.00 (13 V.S.A. § 2582)
          (G) Retail theft under $900.00 (13 V.S.A. § 2577)
                                                                       VT LEG #365579 v.1
     BILL AS INTRODUCED                                                             S.7
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          (H) Unlawful mischief (13 V.S.A. § 3701(c))
          (I) Unlawful trespass (13 V.S.A. § 3705(a))
          (J) Disorderly conduct (13 V.S.A. § 1026)
          (K) Possession of marijuana-first offense (18 V.S.A. § 4230(a)(1))
          (L) Violation of municipal ordinances. [Repealed.]
 Sec. 2. 13 V.S.A. § 5206 is amended to read:
 § 5206. APPOINTMENT OF COUNSEL BY COURT; USE OF
          UNCOUNSELED CONVICTIONS
    (a) Prior to any decision regarding the appointment of counsel under the
 provisions of subdivisions 5201(4)(B) and (5) of this title, the judge shall
 inquire of the prosecutor whether a term of imprisonment or a fine over
 $1,000.00 will be sought.
    (b) At the request of the prosecutor or on the judge’s own motion, at any
 time prior to the commencement of trial and if there is a change of
 circumstances or new information, the judge may vacate the commitment to
 not sentence the defendant to a fine of not more than $1,000.00 or to a period
 of incarceration upon conviction. If the judge vacates the commitment, the
 judge shall inform the defendant of the right to apply for the appointment of
 counsel at State expense.
    (c) A prior uncounseled criminal conviction of a crime listed in subdivisions
 (A) through (L) of subdivision (5) of section 5201 of this title in which counsel VT LEG #365579 v.1
     BILL AS INTRODUCED                                                               S.7
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 was denied and the defendant was otherwise entitled to appointed counsel
 under this subchapter, shall not be used to subject that defendant to the
 enhanced statutory penalty for a subsequent conviction for the same offense.
    (d) Notwithstanding subdivision 5201(4)(B) of this title, a needy person
 who is charged with an offense which provides for a felony penalty for the
 next subsequent conviction for the same offense shall be entitled to counsel
 under this chapter. [Repealed.]
 Sec. 3. 13 V.S.A. § 5231 is amended to read:
 § 5231. RIGHT TO REPRESENTATION, SERVICES, AND FACILITIES
    (a) A needy person who is being detained by a law enforcement officer
 without charge or judicial process, or who is charged with having committed or
 is being detained under a conviction of a serious crime, is entitled:
       (1) To be represented by an attorney to the same extent as a person
 having his or her the person’s own counsel; and.
       (2) To be provided with the necessary services and facilities of
 representation. Any such necessary services and facilities of representation
 that exceed $1,500.00 per item must receive prior approval from the court after
 a hearing involving the parties. The court may conduct the hearing outside the
 presence of the State, but only to the extent necessary to preserve privileged or
 confidential information. This obligation and requirement to obtain prior court VT LEG #365579 v.1
     BILL AS INTRODUCED                                                             S.7
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 approval shall also be imposed in like manner upon the Attorney General or a
 State’s Attorney prosecuting a violation of the law.
    (b) The attorney, services and facilities, and court costs shall be provided at
 public expense to the extent that the person, at the time the court determines
 need, is unable to provide for the person’s payment without undue hardship.
 Sec. 4. 13 V.S.A. § 5232 is amended to read:
 § 5232. PARTICULAR PROCEEDINGS
    Counsel shall be assigned under section 5231 of this title to represent needy
 persons in any of the following:
       (1) extradition proceedings;
       (2) habeas corpus and other proceedings wherein in which the person is
 confined in a penal correctional facility or mental institution the person is
 under an order of hospitalization pursuant to 18 V.S.A. § 7619 in this state
 State and seeks release therefrom; or
       (3) proceedings arising out of a petition brought in a juvenile court when
 the court deems the interests of justice require representation of either the child
 or his or her the child’s parents or guardian, or both, including any subsequent
 proceedings arising from an order therein in the proceedings.
                                                                         VT LEG #365579 v.1
     BILL AS INTRODUCED                                                            S.7
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 Sec. 5. 13 V.S.A. § 5234 is amended to read:
 § 5234. NOTICE OF RIGHTS; REPRESENTATION PROVIDED
    (a) If a person who is being detained by a law enforcement officer without
 charge or judicial process, or who is charged with having committed or is
 being detained under a conviction of a serious crime, is not represented by an
 attorney under conditions in which a person having his or her the person’s own
 counsel would be entitled to be so represented, the law enforcement officer,
 magistrate, or court concerned shall:
       (1) Clearly inform him or her of the right of a the person of the right to
 be represented by an attorney and the right of a needy person to be represented
 at public expense; and.
       (2) If the person detained or charged does not have an attorney and does
 not knowingly, voluntarily, and intelligently waive his or her the person’s right
 to have an attorney when detained or charged, notify the appropriate public
 defender that he or she the person is not so represented. This shall be done
 upon commencement of detention, formal charge, or post-conviction
 proceeding, as the case may be. As used in this subsection, the term
 “commencement of detention” includes the taking into custody of a
 probationer or parolee.
    (b) Upon commencement of any later judicial proceeding relating to the
 same matter, the presiding officer shall clearly inform the person so detained or
                                                                        VT LEG #365579 v.1
     BILL AS INTRODUCED                                                           S.7
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 charged of the right of a needy person to be represented by an attorney at
 public expense.
    (c) Information given to a person by a law enforcement officer under this
 section is effective only if it is communicated to a person in a manner meeting
 standards under the constitution of the United States U.S. Constitution relating
 to admissibility in evidence against him or her the person of statements of a
 detained person.
    (d) Information meeting the standards of subsection (c) of this section and
 given to a person by a law enforcement officer under this section gives rise to a
 rebuttable presumption that the information was effectively communicated if:
       (1) It it is in writing or otherwise recorded;
       (2) The the recipient records his or her the recipient’s acknowledgment
 of receipt and time of receipt of the information; and
       (3) The the material so recorded under subdivisions (1) and (2) of this
 subsection is filed with the court next concerned.
 Sec. 6. 13 V.S.A. § 5201 is amended to read:
 § 5201. DEFINITIONS
    As used in this chapter:
       (1) “Detain” means to have in custody or otherwise deprive of freedom
 of action.
                                                                       VT LEG #365579 v.1
     BILL AS INTRODUCED                                                            S.7
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       (2) “Expenses,” when used with reference to representation under this
 chapter, includes the expenses of investigation, other preparation, and trial.
       (3) “Needy person” means a person who at the time the person’s need is
 determined is financially unable, without undue hardship, to provide for the
 full payment of an attorney and all other necessary expenses of representation
 or who is otherwise unable to employ an attorney.
       (4) “Serious crime” includes:
          (A) a felony;
          (B) a misdemeanor the maximum penalty for which is a fine of more
 than $1,000.00 or any period of imprisonment unless the judge, at the
 arraignment but before the entry of a plea, determines and states on the record
 that the judge will not sentence the defendant to a fine of more than $1,000.00
 or a period of imprisonment if the defendant is convicted of the misdemeanor;
 and
          (C) an act that, but for the age of the person involved, would be a
 serious crime.
       (5) “Serious crime” does not include the following misdemeanor
 offenses unless the judge at arraignment but before the entry of a plea
 determines and states on the record that a sentence of imprisonment or a fine
 over $1,000.00 may be imposed on conviction:
          (A) Big game violations (10 V.S.A. § 4518)
                                                                        VT LEG #365579 v.1
     BILL AS INTRODUCED                                                             S.7
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          (B) Simple assault by mutual consent (13 V.S.A. § 1023(b))
          (C) Bad checks (13 V.S.A. § 2022)
          (D) Petit larceny (13 V.S.A. § 2502)
          (E) Theft of services under $500.00 (13 V.S.A. § 2582)
          (F) Retail theft under $900.00 (13 V.S.A. § 2577)
          (G) Unlawful mischief (13 V.S.A. § 3701(c))
          (H) Unlawful trespass (13 V.S.A. § 3705(a))
          (I) Disorderly conduct (13 V.S.A. § 1026)
          (J) Possession of marijuana (18 V.S.A. § 4230(a)(1)(A))
          (K) Violation of municipal ordinances.
 Sec. 7. 13 V.S.A. § 5206 is added to read:
 § 5206. APPOINTMENT OF COUNSEL BY COURT; USE OF
          UNCOUNSELED CONVICTIONS
    (a) Prior to any decision regarding the appointment of counsel under the
 provisions of subdivisions 5201(4)(B) and (5) of this title, the judge shall
 inquire of the prosecutor whether a term of imprisonment or a fine over
 $1,000.00 will be sought.
    (b) At the request of the prosecutor or on the judge’s own motion, at any
 time prior to the commencement of trial and if there is a change of
 circumstances or new information, the judge may vacate the commitment to
 not sentence the defendant to a fine of not more than $1,000.00 or to a period VT LEG #365579 v.1
     BILL AS INTRODUCED                                                            S.7
                                                              Page 10 of 12
 of incarceration upon conviction. If the judge vacates the commitment, the
 judge shall inform the defendant of the right to apply for the appointment of
 counsel at State expense.
    (c) A prior uncounseled criminal conviction of a crime listed in
 subdivisions (A) through (K) of subdivision 5201(5) of this title in which
 counsel was denied and the defendant was otherwise entitled to appointed
 counsel under this subchapter, shall not be used to subject that defendant to the
 enhanced statutory penalty for a subsequent conviction for the same offense.
    (d) Notwithstanding subdivision 5201(4)(B) of this title, a needy person
 who is charged with an offense that provides for a felony penalty for the next
 subsequent conviction for the same offense shall be entitled to counsel under
 this chapter.
 Sec. 8. 13 V.S.A. § 5231 is amended to read:
 § 5231. RIGHT TO REPRESENTATION, SERVICES, AND FACILITIES
    (a) A needy person who is being detained by a law enforcement officer
 without charge or judicial process, or who is charged with having committed or
 is being detained under a conviction of a serious crime, is entitled:
       (1) To be represented by an attorney to the same extent as a person
 having the person’s own counsel.
       (2) To be provided with the necessary services and facilities of
 representation. Any such necessary services and facilities of representation VT LEG #365579 v.1
     BILL AS INTRODUCED                                                            S.7
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 that exceed $1,500.00 per item must receive prior approval from the court after
 a hearing involving the parties. The court may conduct the hearing outside the
 presence of the State, but only to the extent necessary to preserve privileged or
 confidential information. This obligation and requirement to obtain prior court
 approval shall also be imposed in like manner upon the Attorney General or a
 State’s Attorney prosecuting a violation of the law.
    (b) The attorney, services and facilities, and court costs shall be provided at
 public expense to the extent that the person, at the time the court determines
 need, is unable to provide for the person’s payment without undue hardship.
 Sec. 9. 13 V.S.A. § 5234 is amended to read:
 § 5234. NOTICE OF RIGHTS; REPRESENTATION PROVIDED
    (a) If a person who is being detained by a law enforcement officer without
 charge or judicial process, or who is charged with having committed or is
 being detained under a conviction of a serious crime, is not represented by an
 attorney under conditions in which a person having the person’s own counsel
 would be entitled to be so represented, the law enforcement officer, magistrate,
 or court concerned shall:
       (1) Clearly inform the person of the right to be represented by an
 attorney and the right of a needy person to be represented at public expense.
       (2) If the person detained or charged does not have an attorney and does
 not knowingly, voluntarily, and intelligently waive the person’s right to have VT LEG #365579 v.1
    BILL AS INTRODUCED                                                          S.7
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 an attorney when detained or charged, notify the appropriate public defender
 that the person is not so represented. This shall be done upon commencement
 of detention, formal charge, or post-conviction proceeding. As used in this
 subsection, the term “commencement of detention” includes the taking into
 custody of a probationer or parolee.
                                        ***
 Sec. 10. EFFECTIVE DATES
    (a) This section and Secs.